Copyright laws poorly reflect the digital reality we live in today, which is why the Australian Law Reform Commission (ALRC) has been conducting a long-running investigation into how they might be changed. Those recommendations have finally been published this week and could affect creative work online and even whether you can record TV shows to watch later, but what exactly do they mean — and will any of the proposed changes ever happen?
Copyright picture from Shutterstock
The Copyright And The Digital Economy Report (full version here, summary here) was completed in December 2013 after 18 months of investigation). It makes recommendations around fair use of existing material, including whether or not you can convert material and record it for later use. We haven’t covered every recommendation here — there are complex discussions around the retransmission of TV stations by other networks, the role of libraries, and what happens to “orphan works” whose authors are not known — but have concentrated on those proposed changes that might have immediate impact on consumers.
The big headline recommendation in the report is the introduction of a fair use clause into Australian law, which would (in simplistic terms) allow the remixing and reuse of existing works for the purposes of comments, criticism or parody. In other words: memes involving images from popular movies or TV might be legal, which they aren’t currently. (You’re not that likely to be sued for creating a meme unless you try and sell it on a T-shirt, but you wouldn’t have much of a defence if you did.)
“Many people innocently infringe copyright in going about their everyday activities,” the report notes. “Reforms are recommended to legalise common consumer practices which do not harm copyright owners.
That doesn’t mean you can essentially copy or view anything. In particular, the report notes:
If a licence can be obtained to use copyright material, then the unlicensed use of that material will often not be fair. This is vital to ensuring copyright law continues to fulfil its primary purpose of providing creators with sufficient incentive to create.
But just what would a fair use principle allow? The report identifies four “fairness factors”:
- How the material is used
- The nature of the material
- The amount and substantiality of the material used
- The effect on the value of the material
Those last two clauses would mean that a brief clip from a movie might be allowable in a news report, but a wholesale revoicing of Star Wars probably would not.
It report gives 11 “illustrative purposes” where fair use might be allowed:
(a) research or study;
(b) criticism or review;
(c) parody or satire;
(d) reporting news;
(e) professional advice;
(g) non-commercial private use;
(h) incidental or technical use;
(i) library or archive use;
(j) education; and
(k) access for people with disability.
Introducing fair use principles associated with these areas would simplify the Copyright Act by eliminating current highly specific clauses relating to “fair dealing”, which cover some of those areas (such as news and education) but not others (such as non-commercial private use)
Time shifting and format shifting
Currently, individual Australians are allowed to record TV shows for later private viewing, and to “format shift” material they already own, though the latter policy has lots of exceptions (you can’t rip DVDs, for instance). The report actually recommends that these specific laws be ditched and that fair use rules be applied to set these policies:
The existing exceptions for time shifting broadcasts and format shifting other copyright material [should] be repealed. Instead, fair use or the new fair dealing exception should be applied when determining whether a private use infringes copyright. These fairness exceptions are more versatile, and are not confined to technologies that change rapidly.
That could be good, insofar as it would mean new technologies wouldn’t require new legislation. If, however, the current provisions that block removal of any digital rights management (DRM) are retained, we’d essentially be no better off.
Will anything happen?
Just because the report has been tabled in Parliament doesn’t mean that there will be immediate action. The government may well decide to ignore it entirely, or to only implement some recommendations. Lurking in the background is the controversial Trans-Pacific Partnership (TPP) trade agreement, which is likely to require wholesale changes to copyright law, but which has not been made public in an official form. If it happens, the whole discussion might effectively be mothballed.
Given that the Coalition currently does not have control of the Senate, it seems quite unlikely that we’ll see any change before the middle of the year. So while the promise of copyright law reform has been dangled, for the moment nothing has changed.
Update: And it turns out the current government is inclined to ignore the recommendations but try and make ISPs enforce anti-piracy rules. Oh good.